JUDGMENT :

R.M. Chhaya, J.

The present Appeal arises out of judgment and order passed by learned Sessions Judge, 3rd Fast Track Court, Amreli, dated 25.4.2005 in Sessions Case No. 105 of 2004 convicting the appellant-accused for the offences punishable under section 376(f) of the Indian Penal Code (IPC) sentencing him for life imprisonment and fine of Rs.10,000/- (Rupees Ten thousand only) and in default to undergo further rigorous imprisonment for three months.

1.1 By that very judgment, the learned Addl. Sessions Judge has been pleased to acquit the appellant accused from the charge of offence punishable under section 506(2) of IPC.

2. It is the case of the prosecution that on 19.1.2004 between 13.00 hrs. to 13.30 hrs. the appellant accused who is resident of village Jasvantgadh, Taluka and District Amreli, took prosecutorix Simaben, aged about 11 years, near Khojawadi plot and against her wish and without consent committed rape. It is also the case of the prosecution that after committing the offence of rape the appellant accused threatened prosecutorix that he would kill if she would disclose the fact of the rape to anyone.

2.1. It is further the case of the prosecution that after the said incident, the prosecutorix Simaben returned and on the said day after supper informed about the incident to her mother Pushpaben-PW2 at night. It is the case of the prosecution that father of the prosecutorix had gone out to the Bazar and on his return, Pushpaben(PW1) informed about the said incident. It is the case of the prosecution that as it was night, the prosecutorix was taken to Chital Government Hospital by her parents on the next day. However, as the Medical Officer was not available she was taken to Amreli Government Hospital. FIR was lodged before the Amreli Police Station by Pushpaben Kalubhai,PW1. On such FIR being lodged, the investigating agency recorded statements of various witnesses including first informant and the prosecutorix, collected medical evidence. Chargesheet was filed in the Court of Judicial Magistrate, First Class, Amreli, who in turn committed the case to the Court of Sessions, Amreli, as the offence under section 376(f) was exclusively triable by the Sessions Court and it came to be registered as Sessions Case No. 105 of 2004.

3. The charge was framed at Exh.3 by the learned Sessions Judge for the offence punishable under section 376(f) of the Act as well as section 506(2) of the IPC. The charge was read and explained to the appellant-accused to which he pleaded not guilty and came to be tried.

4. The Sessions Court proceeded with the trial and after considering the evidence led by the prosecution came to the conclusion that the prosecution has successfully established the charge of rape against the appellant-accused and, specifically believed the case of the prosecution based on oral testimony of prosecutorix as well as other prosecution witnesses. The Trial Court, however, reached the conclusion that the prosecution has not been able to prove the charge under section 506(2) of the IPC and acquitted the appellant-accused. Being aggrieved by the aforesaid judgment and order recording conviction and sentence to the appellant-accused under section 376(f) of the Act, the present appeal is filed.

5. Heard Mr. P.M.Lakhani for the appellant-accused and Mr. D.C. Sejpal, learned APP. for the State.

6. Mr. Lakhani has taken us through the oral testimony of PW1-Pushpaben Kalubhai, PW2-Samaben Kalubhai, the prosecutorix, as well as PW5-Dr. Arshibhai Sidibhai Vadher, the Medical Officer of Amreli Government Hospital, who had examined the prosecutorix. Mr. Lakhani has stated that on the basis of the evidence on record, the prosecution has not been able to prove the offence of rape. Mr. Lakhani submitted that as per the medical evidence and oral testimony of PW5 the Medical Officer, rape was not complete. Mr. Lakhani submitted that the prosecutorix being a minor her testimony is not reliable as the same is not corroborated by m